Smt. Brahmo and Another vs Pusan and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties at the admission stage.

These second appeals arise out of two suits i.e. O.S. No. 632 of 1981 filed by the Appellant against the Respondents and O.S. No. 466 of 1982 filed by Jai Singh and Ors. the Respondents in these appeals against the Appellants. Both the suits were consolidated and decided by Munsif Court No. 1 Meerut on 14.01.1985. Both the suits were dismissed. Thereafter, two civil appeals were filed being Civil Appeal No. 25 of 1985 filed by Jai Singh and Ors. and the other being Civil Appeal No. 64 of 1985 filed by the Appellants of the second appeal. Civil Judge, Meerut through judgment and decree dated 12.04.1989 decided both the appeals. Appeal No. 64 of 1985 filed by the Appellants (against the dismissal of their suit) was dismissed. However, appeal No. 25 of 1985 filed by Jai Singh and other Respondents (against dismissal of their suit) was allowed and their suit (O.S. No. 466 of 1982) was decreed. The said suit was for permanent injunction hence appellate court restrained the Defendants of the said suit i.e. Appellants of second appeal from interfering in the possession of Jai Singh and Ors. over the land in dispute.

Smt. Brahmo (since deceased and survived by legal representatives) and Smt. Ratni both real sisters are original Appellants of both these appeals. The original Respondents in the second appeal No. 2151 of 1989 (arising out of O.S. No. 466 of 1982) Sri Pusan father of the Appellants, Sri Jai Singh and Nanak Candra were Plaintiffs in O.S. No. 466 of 1982 which was decreed by the lower appellate court. In Second Appeal No. 2133 of 1989, apart from the three Respondents of Second Appeal No. 2151, three more parties were added as Respondents which are Ram Saran(since deceased and survived by legal representatives), Girdhari and Khazan.

The dispute relates to agricultural land having an area of 11 bigha and odd and comprised in plot No. 338 Aa and 338 Ba of which Pusan was bhumidhar. The case of the Appellants was that as Pusan their father was not having any son hence even after their marriages they continued to reside with their father along with their husbands and they were given possession of the land in dispute by their father and as they were in possession for 30 years hence they had become bhumidhars thereof. However in the revenue record the name of their father Pusan continued to be recorded. It was further pleaded that the Appellants along with their husbands were cultivating the land in dispute. Further, case was that Pusan was 80 years of age and due to age his mind was quite weak and advantage of the same was taken by the Respondents, Jai Singh and Nanak Chandra, who were grand sons of real brother of Pusan, and got a Will executed by him of two bigha 10 biswas land on 19.02.1976 and a gift deed of the entire land on 01.03.1982 in the same manner. The Appellants through their suit (O.S. No. 632 of 1981) sought cancellation of the gift deed and the declaration that it was void. The relief of injunction seeking to restrain the Respondents from interfering in their possession was also sought. Jai Singh is son of son of Pusan''s brother and Nanak Chandra is son of son of the daughter of Pusan''s brother.

After execution of the gift deed the name of the donees Jai Singh and Nanak Chandra was recorded in the revenue records. However, when matter was decided by the lower appellate court, the said order was sub judice in revision. Sri Pusan appeared as witness in the suit of 632 of 1981 (filed by her daughters) as D.W. 1 and admitted that he had voluntarily executed the gift deed in favour of Jai Singh and Nanak Chandra and No. coercion or undue influence was involved in its execution. The version that his mental condition was not good was rightly disbelieved by the both the courts below, particularly on the ground that in his examination-in-chief and cross-examination he did not show any such sign. There is No. such presumption that due to advanced age mind becomes incapable of thinking in the right manner. Pusan in his oral evidence had also said that his daughters and sons-in-law misbehaved and assaulted him physically.

The trial court had held that the gift deed was validly executed. However, it had dismissed the suit of Jai Singh and Nanak Chandra on the ground that they were not in possession. Appellate Court fully agreed with the findings of the trial court regarding validity of the gift deed and further held that Jai Singh and Nanak Chandra were in possession.

I do not find least error in the findings of the courts below regarding validity of the gift deed. Pusan himself admitted that he in fact had executed the gift deed.

The fact that the Appellants-daughters were residing with him for 30 or 40 years along with their husbands and were cultivating the land cannot confer any right upon them. There is absolutely No. question of adverse possession in such situation. It could not be shown that at any point of time the possession of the Appellants became adverse to their father. If a near relation like son or daughter or son-in-law helps some one in cultivation or does cultivation on the land then it is on behalf of that person and not adverse to him. Sons often help their fathers in cultivation and after father becomes quite old they do cultivation on his behalf. It is a very common phenomena in the villages. However, it does not confer any independent right upon the sons during the life time of the father. It is very sad that the Appellants being daughters of Pusan misbehaved and assaulted him. Normally daughters are more affectionate to their fathers in comparison to sons.

The finding of the trial court that the donees were not in possession was utterally illegal and the lower appellate court after perusal of the entire evidence rightly held that after gift deed the donees Jai Singh and Nanak Chandra were in possession. In the gift deed itself it was mentioned that they were given possession. Pusan admitted that they were in possession. Appellants had absolutely No. independent right in the land in dispute, they were cultivating the same on behalf of their father.

Accordingly, I do not find least error in the finding of possession of Jai Singh and Nanak Chandra recorded by the lower appellate court. During life time of Pusan his daughters could not challenge the gift deed impleading him as one of the Defendants.

In any case, the gift deed has rightly been found to be perfectly valid by both the courts below.

Accordingly, I do not find least error in the judgment and decree passed by the lower appellate court. The second appeals are dismissed under Order 41 Rule 11 CPC Order